MAURA CATHERINE MILLICHAP and COMCARE - [2009] AATA 127

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 127
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6222

GENERAL ADMINISTRATIVE DIVISION )

Re MAURA CATHERINE MILLICHAP

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date26 February 2009
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes a decision that Comcare is liable to pay Mrs Millichap compensation in accordance with the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect of the condition of adjustment disorder with mixed anxiety and depressed mood.

.................[Sgd].............................
Deputy President

CATCHWORDS
WORKER’S COMPENSATION - Commonwealth Employees – adjustment disorder contributed to by employment - failure to obtain a transfer or benefit – insufficient evidence that any failure to obtain a benefit caused, or contributed to the disease or injury - decision under review set aside - substitute a decision of liability to pay compensation in respect of the condition of adjustment disorder with mixed anxiety and depressed mood.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 7(4)
Trewin v Comcare (1998) 84 FCR 171
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION

26 February 2009 Deputy President P E Hack SC

introduction
1.The applicant, Mrs Maura Millichap, was an employee of the Australian Taxation Office (the ATO) between November 2000 and July 2007. In December 2006, Mrs Millichap commenced suffering from a psychiatric condition subsequently described as an adjustment disorder with mixed anxiety and depressed mood.
2.Mrs Millichap attributes this condition to her employment in the ATO. The respondent, Comcare, accepts that Mrs Millichap suffers from the condition and that her employment contributed in a material degree to the condition [1].
[1]Exhibit 9, paragraph 4.4
3.But Comcare says that it is not liable to pay compensation to Mrs Millichap because her failure to obtain a transfer or benefit in connection with her employment contributed to the condition. Thus, it is said, her condition does not answer the description of injury in the compensation legislation.
4.The only issue to be decided is whether that contention is made good.

the legislation
5.By virtue of s 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth), Comcare is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if that injury results in death, incapacity for work or impairment.
6.The expression “injury” was defined at the time[2] as meaning, relevantly:
[2]It has since been amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
“(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)…

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] AATA 127
Decision Date: 26 February 2009

CaseChat Overview and Summary

The applicant, Maura Catherine Millichap, sought compensation from Comcare for an adjustment disorder with mixed anxiety and depressed mood which she alleged was contributed to by her employment. The dispute was heard and determined by the Administrative Appeals Tribunal. The Tribunal was required to determine whether the applicant's employment with the Australian Federal Police contributed to her condition, and whether there was a failure to obtain a transfer or benefit that caused or contributed to the disease or injury.

The Tribunal considered whether the applicant had established that her employment contributed to her condition, and whether there was a failure to obtain a transfer or benefit that caused or contributed to the disease or injury. The Tribunal found that there was insufficient evidence to establish that any failure to obtain a transfer or benefit caused or contributed to the applicant's condition. However, the Tribunal found that the applicant's employment did contribute to her condition. The Tribunal noted that the applicant had presented evidence of ongoing stress and anxiety related to her employment, which contributed to her condition.

The Tribunal set aside the decision under review and substituted a decision that Comcare is liable to pay the applicant compensation in respect of her condition of adjustment disorder with mixed anxiety and depressed mood. The Tribunal noted that the applicant's condition was a result of her employment, and that Comcare is liable to pay compensation in accordance with the Safety, Compensation and Rehabilitation Act 1988 (Cth).

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes a decision that Comcare is liable to pay Mrs Millichap compensation in accordance with the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect of the condition of adjustment disorder with mixed anxiety and depressed mood.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MAURA CATHERINE MILLICHAP